Gaffiero and National Disability Insurance Agency [2024] AATA 2641 (26 July 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/5493
Re:Simone Gaffiero
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K. Parker
Date:26 July 2024
Place:Melbourne
The Tribunal sets aside the decision under review and remits this matter to the NDIA with a direction that it approves a new statement of participant supports (‘SOPS’) for Ms Gaffiero which includes funding for the following supports:
(a)the assistive technology (‘AT’) supports as set out in paragraphs [334(a), (e) and (f)] of these Reasons for Decision;
(b)the cost of Bellman Visit wall mount kits and installation of additional power points as required (upon provision of a quote, to be given to the National Disability Insurance Agency prior to the approval of a new SOPS for Ms Gaffiero pursuant to this remittal); and
(c)to replicate all other supports in Ms Gaffiero’s current SOPS (except for any one-off supports for which the funding has already been expended and except for the $1,000 for general AT funding in her current SOPS, which is to be replaced by funding for the supports referred to in the above two paragraphs).
.................[sgd].........................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of supports – adult participant who is deaf – review of statement of participant supports in NDIS plan – whether request for funding for the purchase and installation of a specific brand of hard-wired visual alerting system (“Visualert”) should be included – whether requested support should be funded under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – whether requested support represents “value for money” – requested support does not meet the “reasonable and necessary support” criteria under s 34(1) of the NDIS Act – instead, the Applicant should be provided with funding for the cost of supplementing her current portable Bellman Visit alerting system – decision set aside and remitted with a direction that a new statement of participant supports be approved for the Applicant to include funding for the cost of supplementing the Applicant’s current portable alerting system
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)Cases
Farman and National Disability Insurance Agency [2022] AATA 2880
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852Secondary Materials
Ahrens, M. (2021). NFPA’s “Smoke Alarms in US Home Fires”
Operation Guidelines issued by the National Disability Insurance Agency entitled “Assistive Technology” (updated on 20 December 2023) – Assistive Technology | NDIS
Operational Guidelines issued by National Disability Insurance Agency entitled “Principles we follow to create your plan” (updated on 25 September 2023) - What principles do we follow to create your plan? | NDIS
Operational Guidelines issued by the National Disability Insurance Agency entitled “Smoke alarm supports for adults who are deaf or hard of hearing (updated on 14 December 2022) - Smoke alarm supports for adults who are deaf or hard of hearing | NDIS
Operational Guidelines issued by National Disability Insurance Agency entitled “Reasonable and necessary supports” (updated on 6 October 2023) - Reasonable and necessary supports | NDIS
REASONS FOR DECISION
Senior Member K. Parker
26 July 2024
INTRODUCTION
The Applicant, Ms Simone Gaffiero, is an adult participant in the National Disability Insurance Scheme (‘NDIS’). The NDIS is governed and administered under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’). Ms Gaffiero is deaf and has made a request for funding to be included in her NDIS plan to purchase and install a specific brand and type of visual alerting system in her home, namely, the “Visualert System” (‘Requested Support’). The Visualert System is hard-wired and requires installation of coloured LED lighting units into the ceilings/cornices in various locations within a home.
The National Disability Insurance Agency (‘NDIA’) considers that the Requested Support for Ms Gaffiero does not meet the “reasonable and necessary support” criteria under the NDIS Act. The NDIA considers that an alternative portable visual (and tactile) alerting system comprising several devices or components manufactured by Bellman & Symfon will achieve the same outcome as the requested Visualert System, at a substantially lower cost and is sufficient to meet Ms Gaffiero’s disability-related needs.
This application for review will require the Tribunal to decide whether the Requested Support is a “reasonable and necessary support” for Ms Gaffiero under the NDIS Act and should be funded under the NDIS. Among other considerations, this will depend upon whether the Visualert System, as a support, meets the mandatory criteria under s 34(1) of the NDIS Act.
The Tribunal’s jurisdiction to undertake this review arises under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), operating in conjunction with s 103 of the NDIS Act.
Ms Gaffiero is represented in this proceeding by a legally qualified disability advocate, Ms Jade Little, CODA Auslan Services. Ms Little is not deaf or hard of hearing. She is fluent in English and in Auslan. Ms Gaffiero was also assisted during the hearing by Auslan interpreters which were provided by the Tribunal.
The NDIA was represented by Ms Sarah Varney of counsel and an in-house lawyer from the NDIA, Ms Mary Zdilar. The relevant NDIA case manager was also present.
For the reasons set out below, the Tribunal concludes that the acquisition and installation of the Requested Support in Ms Gaffiero’s home, is not a “reasonable and necessary support” for her under s 34(1) of the NDIS Act and therefore, should not be funded under her NDIS plan. The Tribunal sets aside the decision under review and remits this matter for reconsideration by the Respondent with a direction that it approves a new statement of participant supports for Ms Gaffiero which includes funding for the additional supports as set out in paragraph [351] below, to supplement Ms Gaffiero’s existing portable alerting system.
BACKGROUND
The parties lodged a Statement of Agreed Facts with the Tribunal. This Statement sets out the following agreed background facts:
(a)Ms Gaffiero is 55 years old (56 years old as of the date of these Reasons for Decision);
(b)Ms Gaffiero has been profoundly deaf since birth. Ms Gaffiero has hearing aids but only finds them useful for watching films;
(c)Ms Gaffiero lives with three family members: her husband, 13-year-old daughter, and 30-year-old son;
(d)Ms Gaffiero’s husband and daughter are deaf and participants in the NDIS;
(e)the Gaffiero family has lived in their present home in an outer suburb of Melbourne for approximately six years;
(f)Ms Gaffiero works part time as a disability support worker;
(g)Ms Gaffiero “wears glasses to correct a ‘lazy eye’”;
(h)Ms Gaffiero needs additional technology to be notified of visitors at her front door, and if a smoke alarm is triggered in her home;
(i)Ms Gaffiero owns:
(i)a Ring doorbell (H59);
(ii)a Bellman door transmitter;
(iii)two or three “standard” smoke alarms.
(iv)two or three Bellman fire alarm transmitters;
(v)two Bellman flash receivers;[1] and
(vi)a Bellman bed shaker.
[1] This is a reference to the Bellman Visit Flash Receiver which is manufactured by Bellman & Symfon.
Ms Gaffiero is a private owner of her home and reportedly, intends to live in her current home long term.[2]
[2] NDIA’s Hearing Tender Bundle (‘NDIA’s HTB’), p.319.
At the hearing, Ms Gaffiero said that she works as a support worker, on average, about 24 or 25 hours per week (the number of hours are subject to fluctuation).[3] Ms Gaffiero gave evidence that her husband works full time as a mechanic.[4] Reportedly, he works full time from Monday to Friday leaving home at about 3am and returning each work day between 4pm and 6pm.[5] Ms Gaffiero gave evidence that her eldest adult son, referred to above, lives with her and is responsible for himself. She said he works night shift. Reportedly, he works in a service station and is often at home, sleeping, during the day.[6] He is not hard of hearing or deaf.[7]
[3] Transcript, P-53.
[4] Ibid.
[5] NDIA’s HTB, p.319.
[6] Ibid.
[7] Ibid.
On 17 November 2021, Ms Gaffiero submitted a 70-page NDIS form entitled “Assessment Template – General Assistive Technology” to the NDIA (‘AT Report’).[8] This AT Report was signed by Ms Gaffiero and completed by Ms Annabelle Beasley, an occupational therapist (OT) employed by Louise Dreyer OT Pty Ltd trading as “Full Life” (‘Full Life’). The AT Report was signed by Ms Beasley on 17 November 2021. Ms Beasley made a recommendation in this report that Ms Gaffiero be funded under the NDIS for the purchase and installation of the Visualert System.
[8] Ms Beasley confirmed that she prepared and signed off on the AT Form found at T-Documents pages 17–87 – refer Transcript, P-61.
The AT Report includes a floor plan of Ms Gaffiero’s home, photographs, and other information relevant to the question of whether the Visualert System is a “reasonable and necessary support” for Ms Gaffiero under the NDIS Act.
Ms Theresa Barry, OT, was engaged by the NDIA to undertake an in-home assessment of Ms Gaffiero and to prepare a detailed functional capacity report dated 14 March 2023 (‘Ms Barry’s Report’).[9] Ms Barry is fluent in Auslan and communicated with Ms Gaffiero during the assessment in Auslan. In Ms Barry’s Report she states that Ms Gaffiero’s home is a free-standing, single story dwelling of a medium size. She states the block is flat and there are no large trees on it. The house is located in a well-established residential area and is situated in a no-through road/court with many other neighbouring homes in the same street. The property is fenced on three sides. The front yard is unfenced. The house consists of four bedrooms, an ensuite bathroom, a family bathroom, a separate toilet, two hallways, an open plan living room/dining room and kitchen, theatre room, study, and laundry. Ms Barry notes that next to the television is a monitor displaying the live feed of multiple external security cameras which have been installed outside of Ms Gaffiero’s house. The main outdoor entertainment area of the home was reported by Ms Barry as being a large, covered deck which is accessed outside of the dining/living area and that the rear yard area is “rarely used”.
[9] NDIA’s Hearing Tender Bundle, pp.319 & 320, forming part of Ms Barry’s Report dated 14 March 2023 following assessment on 14 February 2023.
In Ms Barry’s Report, she asserts that Ms Gaffiero’s responses to an emergency are delayed “by her reliance upon technology to alert her”, compared to “those able to access audible input”, and that the provision of AT to Ms Gaffiero is essential to minimise the risk of fatality in an emergency situation, potentially caused by such delays.[10]
[10] P-320.
Ms Beasley states in the AT Report that Ms Gaffiero has the following “co-existing conditions”:[11]
(a)an “underactive thyroid” which is treated with medication and reportedly causes Ms Gaffiero to experience fatigue and dizziness;
(b)“Sleep apnoea”, for which Ms Gaffiero uses a CPAP machine; and
(c)“Poor vision” due to a “lazy eye” since the age of eight. There was no evidence from an optometrist or ophthalmologist before the Tribunal evidencing that Ms Gaffiero had a vision impairment once her eye sight is corrected with prescription glasses.
[11] T-Documents, p.25
On 23 March 2022, a delegate of the Chief Executive Officer (‘CEO’) of the NDIA, approved a statement of participant supports (‘SOPS’) for Ms Gaffiero forming part of a two-year NDIS plan (‘Original Decision’).[12] This SOPS included funding in the amount of $2,000 over a two-year period for low cost AT and repairs to her AT.[13] The SOPS did not include funding for the purchase and acquisition of the Visualert System.
[12] NDIA’s HTB, pp.148–161.
[13] Ibid, p.157.
The NDIA informed the Tribunal that it had subsequently “rolled over” Ms Gaffiero’s plan. As a consequence, the NDIA prepared a new three-year plan for Ms Gaffiero which was backdated to 23 March 2022 and which is due to be reassessed on 22 March 2025.[14] This new SOPS for Ms Gaffiero has approved total funding of $144,714.33 which includes $129,989.95 over this three-year period for core supports. Of this amount for core supports, a sum of $1,000 per annum is allocated for AT.[15]
[14] This new plan was lodged by the NDIA with the Tribunal on 27 March 2024 after the Tribunal requested an update as to whether any new plan had been approved for Ms Gaffiero.
[15] Ibid at p.9 of the NDIS Plan.
Ms Gaffiero sought an internal review of the Original Decision under s 100 of the NDIS Act and requested additional funding to allow her to purchase and install the Visualert System. Ms Gaffiero provided a quotation showing that the purchase cost is $8,003.58 and the installation cost is $2,816.00.[16]
[16] NDIA’s HTB, pp.102 & 103.
On 10 June 2022, a “reviewer” (being a different delegate of the CEO) made a decision under s 100 of the NDIS Act confirming the Original Decision (‘Decision Under Review’).[17]
[17] Ibid, p.114.
On 29 June 2022, Ms Gaffiero sought review of the Decision Under Review by the National Disability Insurance Scheme Division of the Administrative Appeals Tribunal (‘Tribunal’).[18]
EVIDENCE, SUBMISSIONS AND HEARING
[18] T-Documents, T1 - Application for Review of Decision.
Witnesses
Ms Gaffiero gave oral evidence at the substantive hearing of this application about her lived experience including the experiences she has had with her current portable alerting system.
Ms Beasley was called by Ms Gaffiero as an expert witness to give evidence at the hearing. Ms Beasley gave evidence at the hearing that she had been a full-time employee of Full Life for nearly three years.[19] She said she had tertiary qualifications as an OT.[20]
[19] Transcript, P-69.
[20] Ibid, P-69.
In this proceeding, the NDIA requested that the Tribunal issue a summons to give evidence, addressed to Mr Beasley’s employer, that is, the owner of Full Life, Ms Louise Dreyer. Ms Gaffiero objected to this summons being issued. The Tribunal decided it was appropriate to issue the requested summons. Ms Dreyer was called by the NDIA for cross-examination.
Ms Barry prepared an OT functional assessment report, that is, Ms Barry’s Report,[21] and gave oral evidence at the substantive hearing.
[21] NDIA’s HTB, pp.313–342.
The NDIA also called the following expert witnesses:
(a)Mr Andrew Willis, who is the Managing Director of Word of Mouth Technology Pty Ltd being the Australian distributor of Bellman & Symfon products which comprise the Bellman Visit System. Mr Willis signed an expert witness declaration declaring there could be a perceived conflict of interest because Bellman & Symfon products are discussed as one of the alternative solutions. He states that his expert opinion is based on evidence presented and his “sound knowledge of assistance technology for the Deaf and hard of hearing”;[22] and
(b)Mr Daniel Lewkovitz, Calamity Security, who was called as technical expert.
[22] NDIA’s HTB, p.254.
Documentary evidence and submissions
On 7 July 2022, the NDIA lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the AAT Act (‘T-Documents’) numbering 227 pages.
On 16 March 2023, the NDIA lodged an independent OT expert report issued by Ms Barry (‘Ms Barry’s Report’) and a further expert report by Mr Willis (‘Mr Willis’s Report’).
On 6 April 2023, the NDIA lodged a further expert report by Mr Lewkovitz (‘Ms Lewkovitz’s Report’).
On 30 May 2023, Ms Gaffiero lodged a hearing tender bundle (‘Ms Gaffiero’s HTB’) numbering 99 pages, containing her Statement of Facts, Issues, and Contentions (‘SFIC’)[23] and additional evidence including, without limitation, several manuals for the alerting systems and a “Technical Note” by Ms Christina Knor, Fire Safety Engineer, and Certifier Fire Safety (Former C10) accredited by the NSW Building Professionals Board, CK Fire & Safety, dated 29 December 2022. Ms Gaffiero also lodged some video footage comprising video statements made by Ms Gaffiero describing, in Auslan, her lived experience and some video footage showing that one Phillips Hue light was flashing when the front doorbell was activated, but another Philips Hue light in the next room was not flashing.
[23] Ms Gaffiero also lodged the following further submissions in this proceeding, about the independent assessment, dated 22 December 2022 and about the summons to give evidence addressed to Ms Dreyer, dated 12 July 2023, in addition to her SFIC.
On 26 June 2023, the NDIA lodged its HTB (‘NDIA’s HTB’) numbering 452 pages, containing:
(a)its SFIC[24];
(b)a duplicate of the T-Documents;
(c)the two expert reports referred to in paragraph [27] and [28] above;
(d)a range of technical information;
(e)Fire Rescue Vic brochure and booklet;
(f)a report by Mr Jacob Foster, CEO, FCF Fire & Electrical, dated 20 June 2023; and
(g)company extract information issued by the Australian Securities and Investment Commission (‘ASIC’).
[24] The NDIA lodged further submissions in this proceeding, about the independent assessment dated 22 December 2022 and about summons to give evidence addressed to Ms Dreyer, dated 13 July 2023, in addition to its SFIC.
On 4 August 2023, a Witness Statement by Ms Dreyer and 28 annexures, signed on 3 August 2023 (‘Ms Dreyer’s Statement’) numbering 232 pages, was lodged with the Tribunal. Ms Dreyer’s Statement is referred to in detail below under the heading “Conflict of Interest Issue – OT’s expert report by Ms Beasley of Full Life”.
On 7 August 2023, the parties lodged the Statement of Agreed Facts referred to in paragraph [8] above.
On 9 September 2023, the Respondent lodged a Supplementary Hearing Tender Bundle of Documents containing documents numbered SH1 to SH22 inclusive, numbering 430 pages in total (‘NDIA’s Supplementary HTB’). The NDIA’s Supplementary HTB included
(a)a current and historical company extract issued by ASIC in respect of Kilimanjaro 78 Nominees Pty Ltd (‘Kilimanjaro 78’) which shows as of 8 August 2023 that Ms Dreyer’s husband was this company’s sole shareholder[25] (the Tribunal notes the company search for Full Life as of 19 June 2023, shows that Kilimanjaro 78 was the sole shareholder for Full Life);[26]
(b)copies of various Australian Standards;[27]
(c)updated Operational Guidelines issued by the NDIA on its website;[28]
(d)document provided by Ms Barry entitled “Smoke Alarms in Residential Accommodation” issued by the Australian Fire and Emergency Services;[29]
(e)website extracts downloaded by the NDIA on 17 August 2023 about assistive technology for the deaf, hard of hearing, low vision, and persons with blindness, and also about the Bellman Visit Flash Wall Mount Kit;[30]
(f)various documents provided by Ms Dreyer;[31] and
(g)the Visualert instruction manual.[32]
[25] NDIA’s Supplementary HTB, SH1.
[26] NDIA’s HTB, pp.443-446.
[27] NDIA’s Supplementary HTB, SH2-SH8.
[28] Ibid, SH9-SH11.
[29] Ibid, SH12.
[30] Ibid, SH13 & SH14.
[31] Ibid, SH15-SH22.
[32] Ibid, SH23.
On 25 September 2023, the Respondent lodged an updated Hearing Tender Bundle comprising 495 pages (which had four new documents, that is, H42 to H45 inclusive added to the NDIA’s HTB). The new documents comprised further briefing letters from the NDIA to Mr Lewkovitz, Mr Lewkovitz’s Supplementary Report dated 21 September 2023 and his Further Supplementary Report dated 22 September 2023. Any references by the Tribunal below to the NDIA’s HTB will be a reference to the NDIA’s updated Hearing Tender Bundle.
On 4 October 2023, the NDIA updated its Supplementary HTB by adding one new document numbered SH23 which is the instruction manual for the “Visualert All-in-One System for Deaf and Hard of Hearing” .
Substantive hearing
This matter was listed for a two-day hearing on 7 and 8 August 2024. At this hearing, the time that it took the parties to examine the parties’ nominated witnesses was extensive. As the hearing proceeded, a significant amount of new evidence came to light. It was not feasible to complete the evidence from all witnesses within the allocated two-day period. It was adjourned part-heard and listed for a resumed hearing, to hear further oral evidence. It took quite some time to identify a resumed hearing date because of the complexity of lining up the availability of the Auslan interpreters, the parties, their representatives, and the remaining expert witnesses. The parties also submitted further evidence and lodged the supplementary and updated HTBs as listed above.
The substantive hearing resumed on 6 October 2023. On this day:
(a)the NDIA tendered into evidence a document entitled Activfire 2023-2024 “Certificate of Conformity” issued by Kai Loh, Executive Office, ActivFire Scheme;
(a)Ms Beasley produced a Full Life template entitled “Internal Review of Decision Template 2022-11-2023”; and
(b)Ms Gaffiero tendered into evidence an extract from the National Construction Code and photographs of the bathrooms in her home.
Closing submissions and final resumed hearing on 30 October 2023
After the resumed hearing on 6 October 2023, both parties lodged further written submissions in this matter on 26 October 2023 (‘Ms Gaffiero’s Outline of Submissions’ and ‘NDIA’s Closing Submissions’). Ms Little requested a further resumed hearing be listed so she could make further oral submissions on behalf of the Applicant to address the NDIA’s Closing Submissions. This request was granted by the Tribunal.
A fourth and final substantive hearing day took place on 30 October 2023. At this hearing, the Tribunal issued a direction requiring the NDIA to prepare a set of questions (prepared in consultation with Ms Gaffiero), to be put to Ms Dreyer to find out more information about the creation of the document entitled “Compliance with Australian Standards” in respect to the Visualert System.[33]
[33] Refer Tribunal’s Direction dated 31 October 2023. This set of questions was sent to Ms Dreyer on 3 November 2023.
On 21 November 2023, Ms Dreyer prepared a letter providing answers to these questions which was lodged with the Tribunal. In order to afford procedural fairness, the parties were invited to make further submissions about this new evidence.
On 3 November 2023, the NDIA lodged a “Final undated supplementary hearing tender bundle of documents” numbering 534 pages. This set of documents consolidated the NDIA’s previous supplementary hearing tender bundles and included an unredacted version of the Trust Deed for the Got to Give Charitable Trust. Any references by the Tribunal below to the NDIA’s Supplementary HTB will be a reference to the NDIA’s final updated Supplementary Hearing Tender Bundle, unless otherwise indicated.
On 8 December 2023, the NDIA lodged a further submission (‘NDIA’s Supplementary Closing Submission’). Ms Gaffiero elected not to make any further closing submissions.
Further submissions were subsequently lodged by the parties on 9 and 10 April 2024 addressing amendments made to the NDIS Operational Guidelines regarding AT, and by the NDIA on 11 July 2024 regarding changes made by Bellman & Symfon to the product specifications for the Bellman Visit Flash Receiver (specifically, the “environmental requirements”).
ISSUES
The primary issue in this proceeding is whether funding for the purchase and installation of the Visualert System in Ms Gaffiero’s home is a “reasonable and necessary support” under the NDIS Act and should be included in the SOPS forming part of her NDIS plan.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 31 of the NDIS Act establishes a set of general principles that apply to the preparation, variation, reassessment, and replacement of a NDIS participant’s plan, as reproduced below:
31 Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs the funding the participant is entitled to receive under the NDIS.
Each plan must have in it an approved SOPS; and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2) of the NDIS Act.
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The NDIS rules referred to in s 33(5)(d) include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Supports Rules’).
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520 at [43], as follows:[34]
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[34] The Tribunal notes that this decision was appealed but that the appeal was dismissed: refer National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458.
More recently, Colvin J in Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 at [17] to [23], decided that there is a two-stage process for a decision-maker to deploy the concept of “reasonable and necessary supports” in the NDIS Act as a whole. The first stage is to decide whether it is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act. The second stage is for the decision-maker to reach an affirmative state of satisfaction as to each of the six criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS.
The Tribunal has considered the following Operational Guidelines published by the NDIA on its website:
(a)NDIA Operational Guidelines entitled “Principles we follow to create your plan” (updated on 25 September 2023);[35]
(b)NDIA Operational Guidelines entitled “Reasonable and necessary supports” (updated on 6 October 2023) (‘NDIA R&N Guidelines’);[36] and
(c)NDIA Operational Guidelines entitled “Assistive Technology” (updated on 20 December 2023) (‘NDIA AT Guidelines’).
CONSIDERATION
[35] What principles do we follow to create your plan? | NDIS
[36] Reasonable and necessary supports | NDIS
Conflict of Interest Issue - OT’s expert report by Ms Beasley of Full Life
Ms Beasley’s oral and written evidence forms the primary foundation of Ms Gaffiero’s contention that the criteria under s 34(1) of the NDIS Act are met in respect of the Requested Support. Other expert witnesses who gave evidence in this matter, in particular, Mr Lewkovitz and Mr Willis, disagreed with many of the factual assertions and opinions expressed by Ms Beasley. The Tribunal will need to decide how much weight to place on the competing evidence from those experts, including Ms Beasley’s expert evidence, and also the evidence of Ms Barry, who is the independent OT engaged by the NDIA to prepare a report.
The Tribunal considers it appropriate, at the outset, to address the NDIA’s contention that the Tribunal should disregard the expert evidence of Ms Beasley due to the existence of a conflict of interest which impacts upon her objectivity and therefore, the reliability of her evidence. Specifically, the NDIA contends that a conflict of interest arises because:
(a)Ms Beasley’s employer, Full Life, and Full Life’s director and lead therapist, Ms Dreyer, was responsible for designing the initial concept for the creation of the Visualert System; and
(b)Ms Dreyer’s husband, Mr Dreyer, was formerly involved in the marketing and distribution of the Visualert System in Australia through Assistive Tech.
History of the conflict of interest issue
Upon being summonsed to appear at the hearing and before so appearing, of her own volition, Ms Dreyer engaged a lawyer to assist her to prepare and lodge with the Tribunal a lengthy and detailed 15-page witness statement signed on 3 August 2023 (‘Ms Dreyer’s Statement’) including 217 pages of annexures.[37]
[37] Ms Dreyer’s Statement was lodged with the Tribunal on 4 August 2023.
Ms Dreyer’s Statement addressed the above conflict of interest issue by providing an account in relation to the following:[38]
(a)the genesis and creation by Ms Dreyer of the design concept for the Visualert System and her collaboration with an electrician, namely, Mr Scott Egan, Egan Electrical Pty Ltd;
(b)Ms Dreyer’s husband, Mr Johannes Christiaan Du Plessis Dreyer, previously owned and directed the company which is the Australian marketer and distributor of the Visualert System, namely, Seventeen’s Dream Pty Ltd ACN 611 809 879.[39] This company subsequently changed its company name to Assistive Tech Suppliers Pty Ltd (“Assistive Tech”);[40]
(c)at the time of registration of Louise Dreyer OT Pty Ltd (‘Full Life’), Ms Dreyer’s husband was Full Life’s company secretary; and
(d)Full Life issued the AT Report, signed by Ms Beasley, in support of Ms Gaffiero’s request to receive funding for the purchase and installation of the Visualert System.
[38] Ms Dreyer’s Statement, [27].
[39] NDIA’s HTB, p.451.
[40] Ms Dreyer’s Statement, [63].
In Ms Dreyer’s Statement, she states that:
(a)she lives in New South Wales and has been married to Mr Dreyer for 20 years;
(b)she has had 21 years of experience in OT and obtained her OT bachelor’s degree in South Africa;
(c)she also holds qualifications in hand therapy, upper extremity rehabilitation, trauma, and in Auslan;
(d)in the last four years, she has specialised in providing occupational therapy to “deaf and hard of hearing people”;
(e)as from 29 August 2018, Full Life commenced trading as “Full Life Occupational Therapy” and is now referred to as “Full Life”;
(f)she is the “lead” OT at Full Life;
(g)Ms Dreyer’s sister was born deaf. Ms Dreyer states she has an understanding of this type of disability and the biggest barriers, which she describes as poor communication, lack of awareness, and poor education;
(h)in 2010, Ms Dreyer began to learn Auslan so she could communicate with her sister, her sister’s husband, and the deaf community;
(i)Ms Dreyer wants to focus on the deaf and hard of hearing community. She states that nearly all of Full Life’s clients belong to this community;
(j)Full Life has provided services to 1,800 deaf or hard of hearing clients;
(k)Full Life employs ten OTs and ten therapist assistants; and
(l)Ms Dreyer wants to employ staff who are deaf or hard of hearing, and all have Deaf Awareness training and most use, or are learning, Auslan.
In Ms Dreyer’s Statement, she explains that Full Life has never received any incentive, commission, or payments from Assistive Tech.[41] Ms Dreyer states that from June 2020 onwards, she received several letters and emails from NDIA planners and from clients stating that:
(a)Full Life was not disclosing the conflict of interest;
(b)Full Life was not an independent assessor of the Visualert System; and
(c)Full Life was “possibly engaging in sharp practices”.[42]
[41] Ms Dreyer’s Statement, [65].
[42] Ms Dreyer’s Statement, [77].
Ms Dreyer states she was “very upset and stressed by these communications” causing her to implement a number of steps.
Ms Dreyer states that on 4 March 2021, her husband resigned as the company secretary of Full Life[43] and that she wrote a detailed letter to the NDIS Quality and Safeguards Commission (‘Commission’) dated 6 March 2021 to explain “the background” and how she was disclosing the issue to her clients.[44] Ms Dreyer states she received a reply from the Commission advising that the matter was outside of the scope of the Commission’s role, as the complaint did not relate to an NDIS provider and that any complaint about the NDIA should be addressed directly to the NDIA.[45] Ms Dreyer states that she redirected her letter to the NDIA using its “feedback” email address, the AT Team and Internal Review Team, and also the NDIS enquiries email address, but did not receive any reply.[46]
[43] Ibid, [79].
[44] Ibid, [80]-[81].
[45] Ibid, [82].
[46] Ibid, [83] – [87].
Ms Dreyer states that in August 2021 she changed Full Life’s Service Agreement “to try to disclose the issue in a clearer way”. Specifically, Ms Dreyer states that clause 7.2 of the Service Agreement as of this date, provided as follows:[47]
The Client acknowledges that the Service Provider has disclosed the existence of an indirect interest in Assistive Tech Suppliers Pty Ltd, distributor of the Visualert™ system and agrees to waive any actual, potential or perceived conflict of interest relating to this.
[47] Ibid, [88].
In Ms Dreyer’s Statement, she explains that her husband is now divested of any ownership or interest in Assistive Tech. Ms Dreyer sets out the reasons why her husband had agreed to give his ownership of this company to a charitable trust, and to appoint Mr Sibi Thomas Matthew as the director of Assistive Tech. Mr Matthews was described as a person her husband had met “through church”.[48]
[48] Ms Dreyer’s Statement, [96] – [100].
On 1 September 2021, Mr Matthews was appointed as a director of Assistive Tech.[49]
[49] Ibid, [101].
On 22 October 2021, Got to Give Nominees Pty Ltd ACN 654 735 752 (‘GGN’) was incorporated.[50] Initially, Ms Dreyer’s husband was listed as GGN’s sole director and company secretary. The registered office address and place of business for GGN were listed as the home address of Mr Dreyer and Ms Dreyer in Allambie Heights, New South Wales.
[50] Ibid, [102].
Ms Dreyer states that her husband has informed her that he has taken all practical steps to “disconnect” himself from Assistive Tech and GGN.
On 10 November 2021, the Got to Give Charitable Trust (‘GGC Trust’) was established by a Trust Deed as a discretionary trust.[51] Ms Dreyer describes the GGC Trust as being “a discretionary trust with a charitable mandate” and that the beneficiaries are “any charity that the trustee chooses”. Ms Dreyer highlights in her Statement that she and her husband are “not allowed to be beneficiaries of the trust”.[52] Further, Ms Dreyer states that her husband was required to pay capital gains tax of about $21,000, because the sale of Assistive Tech (to GGN) was deemed a sale.[53] She also states that her husband had left “his cash earnings of $77,000 from previous consulting work he had done before 2018” in Assistive Tech so that it would have enough working capital to continue to trade.[54]
[51] Ibid, [103].
[52] Ibid, [113] & [114].
[53] Ibid, [117].
[54] Ibid, [118].
Ms Dreyer states that the sole shareholding of Assistive Tech is now GGN, which owns the shares for the benefit of the GGC Trust.[55]
[55] Ibid, [120].
In Ms Dreyer’s Statement, she states that on 6 February 2023 her husband resigned as director and company secretary of Assistive Tech and GGN. The sole director of Assistive Tech and GGN is now Mr Matthews. The shares in GGN are now owned by Mr Matthews.[56] Ms Dreyer has been informed by her husband that the registered address and principal place of business of both Assistive Tech and GGN is now the address of Mr Matthews.[57]
[56] NDIA’s HTB, p.441 shows that as of 20 April 2023 that Mr Matthews was the sole shareholder. On NDIA’s HTB, p.451 shows that as of 19 June 2023 that GGN was the sole shareholder of Assistive Tech.
[57] Ms Dreyer’s Statement, [110].
Ms Dreyer explains that in December 2021 she altered Full Life’s Service Agreement such that Clause 7.2 would read as follows:
The Client acknowledges that there is a conflict of interest where the Service Provider recommends any items supplied by Assistive Tech Suppliers Pty Ltd (including Visualert™ System) due to Louise Dreyer being involved in the creation of Visualert™ System and having an indirect and non-financial interest in Got to Give Charitable Trust.
Ms Dreyer states that this provision now appears at clause 9 of Full Life’s current version of its Service Agreement.[58]
[58] Ibid, [122].
Ms Dreyer explains that as from December 2021, she has requested that Full Life’s therapists ask Full Life’s clients to sign a form acknowledging that the therapists have explained this conflict of interest to them. Ms Dreyer states she has also “trained her therapists” to provide an explanation of this form to Full Life’s clients. Ms Dreyer states the therapists were also reminded to give the acknowledgment form to Full Life’s clients as part of the pre-assessment checklist procedure. Ms Dreyer states for all Full Life reports that recommend a Visualert System for their client, she will also attach a covering letter to the NDIA to explain the conflict of interest (this is the “Statement regarding Conflict of Interest” referred to in more detail below at paragraph [78] – [80]).[59]
[59] Ibid, [123] – [125].
How Full Life came to be engaged by Ms Gaffiero to complete the AT Report
At the hearing, the NDIA posed questions to Ms Gaffiero about how it came to be that Ms Beasley from Full Life was engaged to conduct an OT assessment of Ms Gaffiero. Ms Gaffiero told the Tribunal that about three years prior, she had been to another home where she had seen the Visualert System. Ms Gaffiero said, “the OT” (referring to Ms Beasley) had “come and asked me questions” and that Ms Gaffiero had asked about Visualert which she had seen in the other home. Ms Gaffiero said she thought it was “my choice” as to what visual alerting system she wanted, because another friend of hers had set one up. She added that the Bellman System was not working for her.[60] Ms Gaffiero said that she had been through “so much stress” trying to see whether her system was working for her and that Visualert “looked perfect for us”, being three deaf people in a home. She said the Visualert System was up high on the wall or the ceiling and was easy to see.[61]
[60] Transcript, P-20 & P-21.
[61] Ibid, P-21.
When asked how she found out about Full Life, Ms Gaffiero explained that it was a “deaf friendly organisation” and it “understands about deaf people” and their “rights” and “needs”. She said she only knew one such firm and that is Full Life. Ms Gaffiero said she felt they were “a good fit” for her, they understood how she communicates, and “about deaf people’s lived experience”.
On the AT Report, Ms Beasley states as follows on the first page (emphasis added):[62]
[62] T-Documents 17.
I am the [OT] who conducted Ms Gaffiero’s home assessment.
I have recommended Visualert System™, taking into account Ms Gaffiero’s needs, the features of Visualert System™, and Ms Gaffiero’s choice to use this system instead of other devices.
To meet her notification needs for the fire alarm and doorbell, Ms Gaffiero was presented with the following options:
·multiple off-the-shelf notification devices (including the Ring Doorbell, Bellman & Symfon devices, and Brooks devices); or
·the Visualert™ System (a customised, hardware system).
Ms Gaffiero chose the Visualert System. In making this choice, Ms Gaffiero is aware that:
·Visualert™ System is significantly higher in cost than off-the-shelf notification devices;
·there is a potential or actual conflict of interest that arises where Full Life Occupational Therapy recommends the Visualert™ System. The conflict has been disclosed to Ms Gaffiero (using Auslan and captioning). Please refer to the attached statements:
§Ms Gaffiero’s Acknowledgement of Conflict of Interest; and
§Full Life Occupational Therapy’s Statement regarding Conflict of Interest; and
·The process of obtaining the Visualert™ System is more lengthy than obtaining off-the-shelf notification devices due to the higher cost of Visualert™ System and the NDIS decision-making processes involved.
Ms Gaffiero has decided to use the Visualert™ System after considering the above factors. She reports that she chose this option because she wants reliable and effective notification of the fire alarm and doorbell in all areas of her home, and Visualert™ System is the only device that can be used in the outdoor and wet areas of her home.
Full Life’s “Acknowledgement of Conflict of Interest” form
Ms Gaffiero confirmed that she signed a Full Life “Acknowledgement of Conflict of Interest” form (‘Conflict Acknowledgement’). It included the following acknowledgments (emphasis added):[63]
[63] NDIA’s HTB, p.120.
· I am an NDIS participant seeking the provision of a Visualert™ System under my NDIS plan…
· My request for a Visualert System is based solely on my choice.
· [Full Life] has not pressured me (directly or indirectly) to choose the Visualert™ System...
· … I am aware that:
oLouise Dreyer was personally involved in the concept of and retains an indirect financial interest in, Visualert™
oas a result, there is an indirect interest between [Full Life] and Visualert™; and
othere is a perceived or potential conflict of interest in [Full Life] recommending Visualert™ to me.
My decision to request a Visualert™ System is made with full awareness of any conflict of interest relating to [Full Life] recommending Visualert to me.
Full Life’s Statement regarding Conflict of Interest
Ms Gaffiero’s request for an internal review by the NDIA under s 100 of the NDIS Act was signed by Ms Gaffiero on 25 May 2023 (‘Section 100 Request’). The Section 100 Request refers to and attaches, Full Life’s Statement regarding Conflict of Interest (‘Conflict Statement’).[64] The Section 100 Request also states that the Visualert System (emphasis added):
…was created out of a desire to enable deaf occupants to live at home safely and independently, and all proceeds of Visualert™ go to a charitable cause.
The conflict of interest that arises when [Full Life] recommends a Visualert™ System is due to an indirect and nonfinancial interest. Louise Dreyer receives no direct or indirect financial benefit from Visualert.™ In particular, the Supplier is wholly owned by a charitable trust (Got to Give Charitable Trust) of which Ms Dreyer, Mr Dreyer and their immediate family members are ineligible beneficiaries.
[64] T-Documents, p.104.
The Conflict Statement attached to the Section 100 Request is found at T-Document T7 and states as follows:[65]
[65] Ibid, pp.107-109.
·An indirect and non-financial conflict of interest arises where [Full Life OT] recommends Visualert™ to clients.
·[Full Life] has properly managed any conflict of interest that arises where it recommends Visualert™ to clients.
·The credibility of [Full Life]’s assessments and recommendations of Visualert™ is not affected by any conflict of interest.
Conflict of Interest
In 2018, Louise Dreyer created the concept of Visualert,™ and her husband (Johannes Dreyer) began marketing and supplying Visualert™ through Seventeen’s Dream Pty Ltd (ABN 93 611 809 879), now Assistive Tech Suppliers Pty Ltd (‘Supplier’).
Visualert™ System was created out of a desire to enable deaf occupants to live at home safely and independently, and all proceeds of Visualert™ go to a charitable cause.
[Full Life] is independent of the Supplier. In particular:
· Ms Dreyer has no involvement or role in the operation of the Supplier; and
· Ms Dreyer has no interest in the Supplier. She holds no shares in the Supplier, and does not receive any payment from the Supplier when a participant purchases Visualert™.
Ms Dreyer receives no direct or indirect financial benefit from Visualert.™ In particular:
·she holds no intellectual property relating to Visualert;™ and
·the Supplier is wholly owned by a charitable trust (Got to Give Charitable Trust) of which Ms Dreyer, Mr Dreyer and their immediate family members are ineligible beneficiaries (footnote ii: The supplier of Visualert (Assistive Tech Suppliers Pty Ltd ACN 611 809 879) is wholly owned by a charitable trust (Got to Give Nominees Pty Ltd ACN 654 735 752 as Trustee for the Got to Give Charitable Trust). The trust deed expressly states that Ms Dreyer, Mr Dreyer, and their immediate family members are ineligible beneficiaries.)
[Full Life] recognises that an indirect and non-financial conflict of interest arises where [Full Life] recommends Visualert™ arising from Ms Dreyer’s personal involvement in the origin of the concept of Visualert™ and her husband’s role in the charitable trust (Got to Give Nominees…, the Trustee for the Got to Give Charitable Trust)(‘Conflict’). The Conflict does not relate to any indirect or direct financial gain.
The Tribunal notes that the Conflict Statement explains how Full Life says it discloses and manages the conflict of interest and represents that it does not exclusively recommend Visualert to deaf participants, notably:
Visualert™ is recommended:
·on a case-by-case basis where, in the therapist’s opinion, the participant’s notification needs can be best met by a hardwired alerting system; and/or
·where the participant’s specifically request the Visualert™ system.
Alternative lower-cost notification devices are considered, as well as participants’ experiences of trialling alternative options.
Alternative lower-cost devices (such as the Ring Doorbell and Bellman & Symfon devices) are recommended to many participants. These devices are often recommended where:
· participants reside in small dwellings (such as one-bedroom units);
· properties are not participants’ permanent and long-term residences;
· participants need a short-term solution while waiting for approval of Visualert™; or
· Participants choose not to install the Visualert™ system for any reason.
It is important to note that a far greater proportion of recommendations for alternative lower-cost devices are made in comparison to the proportion of recommendations for Visualert™.
[Full Life OT] records show that of the clients with hearing loss, to date: (as of 5 March 2021)
·approximately 30% of clients have been recommended Visualert™; and
·the remaining proportion of clients have been recommended other lower-cost notification devices.
AAT decision in Farman and resulting correspondence between Full Life and the NDIS Quality and Safeguards Commission
In Ms Dreyer’s Statement, she refers to a previous decision of the Tribunal (as presently constituted) in the matter of Farman and National Disability Insurance Agency [2022] AATA 2880 (2 September 2022) (Farman). She also refers to a number of other decisions by the AAT in respect of the Visualert System. The Tribunal is required to consider each application before it based on its individual circumstance in undertaking merits review. As individual circumstances may vary from participant to participant the Tribunal has not been influenced by the outcome in any of these AAT decisions, including Farman. Nevertheless, the Tribunal will address the references to Farman as made by Ms Dreyer in her statement, as they form part of the history of an exchange of correspondence between Full Life and the NDIS Quality and Safeguards Commission (‘Commission’) which is relevant to the Tribunal’s assessment about the objectivity of Ms Beasley as an employee under the supervision and control of Ms Dreyer of Full Life.
In Farman, the Tribunal addressed a conflict of interest issue arising in relation to the joint recommendation made by Ms Dreyer as the lead therapist and one of Full Life’s employee OTs, in an AT report recommending that the applicant in that matter, Ms Farman, be funded for the purchase and installation of the Visualert System in Ms Farman’s home.
When the Farman matter was before the Tribunal, Ms Dreyer’s husband was still involved in the company, Assistive Tech, which sold and distributed Visualert products in Australia.
In Farman, the Tribunal found that it could not accept the opinions and recommendations in the AT report issued by Full Life and made a non-binding observation to the effect that the NDIA may wish to consider whether to refer the conflict issue concerning Full Life and Ms Dreyer to the Commission for further investigation. The Tribunal, in Farman, observed that it seemed inappropriate that a NDIS-registered service provider, that is, Full Life, had sought to be paid over $2,000 to prepare an OT report (using funds from Ms Farman’s NDIS plan) recommending specific AT that Ms Dreyer potentially stood to receive a benefit from, albeit indirectly, due to her husband’s involvement, at that time, with the entity, Assistive Tech, who was marketing and selling the recommended Visualert product. The Tribunal found that Ms Dreyer was aware of that conflict of interest and at the relevant time, did not proactively disclose it to the NDIA.
In Ms Dreyer’s Statement in this proceeding, she refers to the Tribunal’s observations in Farman and attaches a subsequent exchange of correspondence between herself and the Commission in early 2023.
Written warning given by Commission to Full Life
Ms Dreyer provided a copy of an email and attached letter dated 11 January 2023 sent by the Commission to Ms Dreyer. The subject header of this letter is entitled “reminder of obligations” under the NDIS Act directed to “Louise Dreyer OT Pty Ltd, trading as Full Life Occupational Therapy”. The Commission states it became “aware of a potentially undeclared conflict of interest relating to referrals to Assistive Tech Suppliers Pty Ltd” and that it was aware of the “familial connection between Louise Dreyer OT Pty Ltd and one of the directors of Assistive Tech Suppliers Pty Ltd, Johannes Dreyer”.
The Commission letter dated 11 January 2023 states that it is a reminder to Full Life of its obligations as a registered NDIS provider. In this letter, the Commission describes, at a high level, the requirements of registration as a NDIS provider and pointed out that Full Life is subject to a number of conditions of registration under the NDIS Act and its subordinate legislation, as set out in the “Act, Rules and Guidelines”. A warning was issued to Full Life that a failure to comply with that legislation could lead to the Commission taking compliance or enforcement action, such as pursuance of civil penalties, imposition of banning orders, registration conditions, infringement notices, compliance notices, suspension or revoking of registration.
In the Commission’s letter dated 11 January 2023, it advised Full Life that as a registered NDIS provider, it is required under the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) to act with integrity, honesty and transparency and that this includes “proactively identifying and disclosing any potential conflicts of interest” to NDIS participants and to the NDIA as the administrator of the NDIS funds. The Commission states in this letter that Full Life is reminded of its obligations and that the Commission will “continue to monitor” Full Life’s compliance with the conditions of registration, including the NDIS Code of Conduct, and “will take enforcement action where appropriate”. Finally, the Commission encouraged Full Life to “review its policies and processes” to ensure that it “has arrangements in place to identify and disclose any potential conflicts of interest”.
In the covering email to the Commission’s letter dated 11 January 2023, an indication was given that the Commission did not intend to take any further action in relation to the matter.
The Tribunal considers that on 11 January 2023, by the Commission’s letter referred to above, Full Life was:
(a)given an official written warning about the possible consequences if Full Life’s conditions of registration and requirements as a registered NDIS provider were not met;
(b)put Full Life on notice that the Commission would continue to monitor it; and
(c)prompted Full Life to undertake a review of its practices and procedures.
Full Life’s response to the Commission’s warning
On 3 March 2023, Ms Dreyer responded to the Commission’s letter and attached a small bundle of materials.[66] In this letter, she sets out a background about the creation of the Visualert System and described it as being a system to benefit the deaf community. Of note, Ms Dreyer states that during assessments of participants who are deaf or hard of hearing, she had observed that deaf participants experienced “a severe lack of safety and independence due to the lack of visual and vibrating notifications of key audible alerts (such as a fire alarm)”. Ms Dreyer then states that she could not find any notification devices “on the market that could be placed in wet areas, such as bathrooms and outdoor living spaces”. She made this statement despite being aware of evidence given by the distributor of the portable Bellman & Symfon devices during the Farman hearing, that those products may, in fact, be used in wet areas including bathrooms, and that the distributor and manufacturer of those devices had confirmed that it would honour the product warranty in circumstances where the product is used in the bathroom provided it is not submerged in water. Ms Dreyer was aware of this evidence because it was put to her for comment during cross-examination in the Farman matter, as set out in the Reasons for Decision in that proceeding, which preceded the date of her response to the Commission. It is amiss that Ms Dreyer did not refer to this evidence in her response to the Commission and instead, made a factual assertion to the contrary.
[66] Annexures to Ms Dreyer’s Statement, p.5.
Ms Dreyer, in her letter to the Commission in March 2023, sets out several reasons for her assertion that the available portable alerting systems for the deaf and hard of hearing, do not provide the “same level of reliability as those legally required for hearing persons”, being that:
(a)the majority of them are portable and need to be plugged in, creating a risk they may be unplugged or switched off;
(b)they rely on “wireless connections” and “when tested during assessments, at times, these devices lacked reliability due to poor Wi-Fi connection or radiofrequency interferences caused by physical distance or walls”; and
(c)due to “deficient visibility”, from the size and white lights and limited placement options, due to availability of power sockets.
These reasons expressed by Ms Dreyer were the same as the reasons given by Ms Beasley in her AT Report in her explanation as to why she was recommending the Visualert for Ms Gaffiero instead of a portable alerting system. The Tribunal does not consider it to be a coincidence that those reasons were the same and is satisfied that Ms Dreyer’s views about the two different options has indoctrinated the views formed and expressed by Ms Beasley about each AT option in the AT Report.
In Ms Dreyer’s letter to the Commission in March 2023, she makes the following further statement (emphasis added):
In a house fire, the reliability of notification devices is of vital importance and system failure has dire consequences. While wireless or plug-in notification devices can be used for low-risk daily activities, it is highly inappropriate to rely on these devices for emergency warnings. The level of reliability is paramount in the context of a deaf occupant, who relies solely on these notification devices.
Ms Dreyer, in her letter, explains that during her assessments, most, if not all, of her clients had experienced “anxiety” relating to their inability to hear audible warnings and alerts. She spoke of the experience of some of her clients and states that this anxiety had a “severe functional impact on participants’ daily living, including sleep disruption and restlessness”.[67]
[67] Annexures to Ms Dreyer’s Statement, p.6.
Finally, Ms Dreyer states, in her letter to the Commission, that she had observed that deaf participants had a “common impaired ability to read device manuals and follow written troubleshooting instructions”, because “many deaf participants have a low level of English literacy and comprehension, (due to growing up without access to communication support at school), and English is not the first language of the prelingually deaf”. Ms Dreyer asserts in this letter that using multiple notification devices for different alert types, increased the technical difficulties. She claimed that her clients did not have devices that were “adequately accessible” and that she had frequently found their current notification devices “unused and kept in storage”.
Full Life’s explanation to the Commission about the origins of Ms Dreyer’s designing the concept for the Visualert System and her unsuccessful endeavours to seek “feedback” about the Visualert System from a NDIA planner
In Ms Dreyer’s letter to the Commission on 3 March 2023, she seeks to explain the origins of how she came to design the concept for the Visualert System. Ms Dreyer states that she had received a request from a support coordinator for a hardwired notification system. Ms Dreyer states that the support coordinator had informed her that the participant’s “NDIS planner”, Mr Peter Mulham, had agreed that a hardwired notification system was a “reasonable and necessary support”. Ms Dreyer states that she “worked with a local electrician, Egan Electrical Pty Ltd, to design a hardwired, all-in-one notification system”, which she states is waterproof and highly visible.
Ms Dreyer states in this letter to the Commission that she began to receive many requests for home assessments from participants requesting “similar hardwired notification systems” after the first participant who had received one, posted about it on Facebook. Ms Dreyer said she sought advice from Mr Mulham about the hardwired system because it was “considerably more expensive than off-the-shelf notification devices available in the market”. In her email to Mr Mulham, Ms Dreyer disclosed her involvement with the creation of the product, that she was receiving many requests for it, and she stated to him that she was requesting feedback (from him) “on the proposed reporting process to assist participants”.
In Ms Dreyer’s email to Mr Mulham dated 4 March 2019, she states that there is a “need for sustainable, simple, long-term solutions in larger homes”, since there was nothing on the market which was suitable.[68] She refers to the hard-wired system as an “all-in-one solution”, as it is able to connect any alerting device on the one system. She refers to some “positives”, being that the lights can be placed outside and in wet areas (bathroom and toilet), and that they are removable and can be reinstated at any new dwelling. She said, “the lights do not flash but are stationary and reflect down the wall”.
[68] Annexures to Ms Dreyer’s Statement, p.75.
In this email, Ms Dreyer informs Mr Mulham that once she meets the client, she custom designs the basic system, “based on the reasonable and necessary recommendations”. Ms Dreyer states that the “word had spread” and that she had been “bombarded with requests”. Ms Dreyer concludes her email to Mr Mulham with the following request and statements (emphasis added):
I was hoping you would be able to scan my report…[sic] check out the system, and just give ANY feedback, even if it is just 2 words. Since you yourself have a hearing impairment your input is invaluable.
I just need to know if I am on the right track because as mentioned, I don’t want to be wasting peoples [sic] time and funding. I know each planner will need to look at every situation independently, I got a yes the first time, and hoping to get a good track record moving forward.
I know this is a big ask, but as a provider, it is very difficult helping the participant understand the reality of the NDIS, I would at least like to know that I did my best, on their behalf, advocating for a more all in one, simple, less intrusive, long term solution.
When you have the time please have a look, the aim of my report it[sic)
to make the report easy to understand for planners and why the traditional systems are not suitable.
The Tribunal regards that the statements by Ms Dreyer in her email to Ms Mulham dated 4 March 2019 demonstrate that she is a strong advocate for the Visualert product for which she has designed the concept. It also shows that Ms Dreyer is of a fixed view that the “traditional systems”, being the portable alerting system, are not suitable – see last sentence in the quoted paragraph above.
In Ms Dreyer’s letter to the Commission, Ms Dreyer explains she did not receive a reply from Mr Mulham.[69] Ms Dreyer states that since the NDIA had approved the system for one participant, she continued to recommend Visualert where she assessed it to be the best solution for deaf participants. Ms Dreyer explains to the Commission in her letter how she has enabled participants in other States to access the system.
[69] Annexures to Ms Dreyer’s Statement, p.7.
The history given by Ms Dreyer is consistent with the further account given by her at the hearing in relation to how it came to be that she had invented the Visualert product and contributed to expanding its distribution in Australia. Specifically, Ms Dreyer stated that her husband, Mr Dreyer, had agreed, in May 2019, to market and distribute the Visualert product through Assistive Tech. Ms Dreyer states that this company registered the Visualert trademark and made its first sale of the Visualert System in July 2019. Ms Dreyer states that “no profit from the sale of the Visualert System has flowed” to her or her husband. Ms Dreyer also states that she does not currently have, nor has she previously had, any involvement or role in the operation of this company (that is, Assistive Tech).
Full Life provided a Technical Note prepared by a Fire Safety Engineer about the Visualert System to the Commission
Ms Dreyer informed the Commission that Assistive Tech had recently undertaken an independent assessment of the Visualert product. Ms Dreyer was in possession of a document arising from this independent assessment because she attached it to her letter to the Commission. It comprised the “Technical Note” prepared by Ms Knor (‘Technical Note’).[70]
[70] Ms Gaffiero’s HTB, pp.64-67 (at p.18 of the annexures to Ms Dreyer’s Statement).
Ms Knor states in the Technical Note that her firm was engaged by Assistive Tech. The “Scope of the Project” was described by Ms Knor as being “to assess the benefits of a hardwired interconnected smoke alarm system and compare the reliability of a hardwired alarm system to a completely wireless system.”
Ms Knor refers to an article by Ahrens, M. (2021). NFPA’s “Smoke Alarms in US Home Fires” and states that (based on US statistics) hardwired smoke alarms had operated in 94% of the fires considered large enough to trigger a fire alarm, whereas battery-powered alarm had operated in 82% of the time. Ms Knor reproduced a graph from this article, that is, Figure 1, providing statistics about the reasons why smoke alarms did not operate in a home structure fire in the US from 2014-2018. This figure shows that:
(a)in 41% of cases, the reason was “missing or disconnected battery”;
(b)in 26% of cases, it was “dead or discharged battery”;
(c)in 11% of cases, the reason was unspecified;
(d)in 7% of cases, it was a “lack of cleaning”;
(e)in 6% of cases, it was “hardwired power failure, shutoff or disconnect”;
(f)in 6% of cases, it was a “defective unit”; and
(g)in 4% of cases, it was due to the “improper installation of placement”.
In addition, Ms Knor states in her Technical Note that a wireless alarm system which is using radiofrequency as a means of communication, is “susceptible to radio interference” and they also have “a limited range which may result in them failing to operate outside the range of the detectors”. Ms Knor states that “experience has shown that the signal strength can depend on the type of construction” and “signal interruptions can be caused by factors such as obstructions, distance between devices, network interferrance[sic], whereby several devices attempt to send signals at the same time and electronic devices such as wireless phnes[sic] or microvaws[sic]”. Ms Knor asserts in the Technical Note that communication over a hardwired fire detection and alarm system is considered more reliable, compared to a wireless system.
Ms Knor concludes in her Technical Note that due to the “arguments” referred to in the above paragraph that it has been “demonstrated” that “communication over a hardwired fire detection and alarm system is considered more reliable compared to a wireless system”.[71] Mr Knor then states that a hardwired-interconnected fire detection and alarm system is “more effective” than a wireless alarm system and this conclusion is further supported by statistics as to the average fire death rate per 1,000 reported home structures fires (in the US), by presence of smoke alarms and automatic extinguishing systems. Ms Knor reproduces Figure 8 from the Ahrens, 2018 article showing that for homes without an automatic extinguishing system, the average fire death rate per 1,000 is 3.7 where the alarm is hardwired and 7.8, where there is a battery alarm. In Mr Lewkovitz’s Report, he questions why Ms Knor has relied upon “American research rather than Australian”, noting the significant differences in fire safety and building standards between the two countries. This is a valid point.
[71] Ms Gaffiero’s HTB, p.66.
Full Life provided the Commission with a Compliance Certificate in respect of the Visualert System
In Ms Dreyer’s letter to the Commission, she also states that Visualert “is compliant with fire safety standards”. In support of this assertion, Ms Dreyer attaches a document entitled “Compliance with Australian Standards” dated 6 May 2020 signed by Mr Scott Egan from Egan Electrical Pty Ltd (‘Compliance Certificate’).[72] The Tribunal notes that Mr Egan is the electrician who worked with Ms Dreyer initially to create Visualert. Mr Egan states, on the Compliance Certificate, that Visualert uses new PSA Products Lifesaver smoke alarms that are tested and approved to AS:3786:2014 and that Visualert complies with:
(a)AS 1670.1:2018 “Fire detection, warning, control and intercom systems – System design, installation and commissioning, Part 1:Fire”;
(b)1603.11:2018 – “Automatic fire detection and alarm systems, Part 11; Visual warning devices”;
(c)AS 1603.17-2011 “Automatic fire detection an alarm systems-Warning equipment for people with hearing impairment”.
[72] NDIA’s HTB, p.495.
Attached to Mr Egan’s Compliance Certificate is a document entitled “Certificate of Compliance with Australian Standards (To be signed). Final Audit Report. 2020-05-06”. As highlighted by the NDIA, it states that it was “created” by Ms Dreyer on 6 May 2020, emailed, viewed and e-signed by Mr Egan and then emailed back to Ms Dreyer on this same day.[73] The NDIA was concerned that Ms Dreyer appears to have been the creator of a Compliance Certificate issued in respect of the Visualert System and that she had asked Mr Egan to sign it.
[73] Annexures to Ms Dreyer’s Statement at p.26.
While this matter was reserved, at the Tribunal’s request, the NDIA posed some further questions to Ms Dreyer, seeking an explanation about the circumstances of Mr Egan issuing of the Compliance Certificate and specifically, her involvement in the creation of this document. In a letter dated 21 November 2023 addressed to Ms Zdilar of the NDIA and filed with the Registry of the Tribunal, Ms Dreyer provided the following answers:
Why did you create the certificate relating to Visualert?
1. In early 2020, I was informed by a participant that the NDIA had rejected an application for Visualert, as it was a customised system and there was no information that it complied with relevant legal requirements for safety alert devices, such as Australian Standard AS 1670.1. Specifically:
5.3.(a) Providing support is not contrary to a law of the Commonwealth, State or Territory – Criteria not met.
This is a customised system and it there is no information that it complies with relevant legislature for safety alert devices (Australian Standard AS 1670.1 (Fire Detection, Warning, etc). “You may be required to comply with this standard if you intended to create or place fire detection and alarm systems”
2. I relied on Scott Egan, of Egan Electrical Pty Ltd, to verify compliance with the Australian Standards as he was the one who had built the Visualert System, and so he had the technical knowledge of the specifications of the components, design and operation of the Visualert System. While I had come up with the idea of the Visualert System and I understood its general function and design, I always referred to Scott, any questions that I received about the technical specifications of the Visualert System. I wanted to have something in writing direct from the manufacturer so I could answer these types of questions.
3. Scott told me that he is [sic] licenced electrician, and he has approximately 22 years’ experience within various electrical environments (including domestic, commercial and other industrial sectors) and he has electrical certificates in design, constructions and electrical testing.
4. In or about February 2020, I had a telephone conversation with Scott Egan, who confirmed that in his opinion the Visualert System complied with Australian Standard AS 1670. I asked Scott to provide me with a written statement verifying that the Visualert System complied with Australian Standards.
5. As I didn’t receive anything from Scott, I asked an employee of Full Life, Dinah, to follow up Scott. During their conversation, Scott confirmed to Dinah that the Visualert System complied with the following standards:
(a) AS 1670.1:2018 ‘Fire detection, warning, control and intercom systems – System design, installation and commissioning, Part 1: Fire;’
(b) 1603.11:2018 – ‘Automatic fire detection and alarm systems, Part 11: Visual warning devices;’ and
(c) AS 1603-2011 (now AS 1603.17-2020) ‘Automatic fire detection and alarm systems-Warning equipment for people with hearing impairment.’
Dinah repeated my request that Scott provide a certificate or statement of compliance. Scott asked that we prepare the document and email it to him, and he would review and sign off on it if he agreed with its contents. I understood that Scott made this request because he was too busy to do it himself.
6. On 6 May 2020, in response to Scott’s request and based on what he had told us, I prepared the document and emailed it to Scott for his review.
7. On 6 May 2020, Scott signed it and emailed it to me.
How did you determine the contents of the certificate?
8. I determined the contents of the certificate from the information Scott had given me and Dinah as referred to above.
Why did you ask Scott Egan to sign it?
9. I asked Scott to provide a certificate, as he was the most suitable person to verify compliance of the Visualert System with the standards, since:
(a) Scott was the manufacturer of the Visualert System, with technical knowledge of the Visualert System components, design and operation;
(b) Scott had read and checked the Australian Standards and verified compliance of the Visualert System with these standards; and
(c) Scott was a licensed electrician and I believed, on the basis of our conversation, that he was familiar with the applicable Australian Standards.
10. I wanted to have a written document from the manufacturer that I could rely on to answer any questions about the compliance of the product with the Australian Standards.
What did you do with the signed certificate when it was returned to you?
11. I saved it for our records, to use in response to any questions we may receive regarding whether the Visualert System complies with the Australian Standards.
What reason did you have for believing that the certificate was true and correct?
12. I relied on Scott's knowledge and expertise and the fact that he had verified its contents. I was fortified in that belief by the fact that Scott informed me (in his email to me of 1 April 2023, attached to this letter) that the smoke alarms and additional control switch gear used in the Visualert system were separately certified as compliant with the relevant Australian Standards by the manufacturers of those components.
Fact sheet referred to in LPD12
13. The fact sheet referred to in attachment LPD12 of my witness statement was inadvertently not annexed. I have attached to this letter the fact sheet referred to as LPD12.
The document comprising LPD12 annexed to Ms Dreyer’s Statement is a fact sheet entitled “Visualert™ System: Compliance with State Legislative Requirements and Australian Standards” and appends the certification provided by Mr Egan in the Compliance Certificate into this factsheet (see Appendix 1).
It is notable that in the first half of 2020 that Ms Dreyer considered it important that she obtain a Compliance Certificate in respect of the Visualert System and that she did so by approaching Mr Egan in the absence of contacting the supplier and distributor of the product, Assistive Tech, who could have, in turn, approached the manufacturer of that system if such a certificate was considered useful. The action of Ms Dreyer seeking out this Compliance Certificate (and in fact, drafting it albeit purportedly on Mr Egan instructions), demonstrates Ms Dreyer’s close involvement in wishing to promote the sale and use of this particular AT product and her keenness to advocate for the product with the desired outcome of NDIS participants who are deaf, being funded for its purchase and installation.
Ms Dreyer’s acknowledgement to the Commission that a conflict of interest exists and her view that Full Life discloses and manages it
Ms Dreyer’s letter to the Commission includes an acknowledgement by her that she realises that a conflict of interest arises when Full Life recommends Visualert, due to her personal involvement in the origin of the concept of this system and her husband’s (previous) role with Assistive Tech. She also acknowledges that Full Life is ultimately owned by a family trust of which she and her husband are beneficiaries and that her husband is a director of the corporate Trustee. Ms Dreyer proceeds to explain how she discloses this conflict to NDIS participants and manages the conflict of interest. Ms Dreyer asserts that Full Life has acted in accordance with the NDIS Code of Conduct dated March 2019 by adequately disclosing the conflict and that she had taken “all available avenues to explain to the NDIA the conflict and its disclosure and management”.[74]
[74] Annexures to Ms Dreyer’s Statement, p.8.
In Ms Dreyer’s letter to the Commission, she advises that in October 2021, her husband had transferred the ultimate ownership of Assistive Tech to a trust with a charitable mandate. Ms Dreyer states that she, Mr Dreyer, and her immediate family, are expressly ineligible to benefit from the trust. Ms Dreyer states that the sole shareholder is GGN as trustee of the GGC Trust.[75]
[75] Annexures to Ms Dreyer’s Statement, p.10
Ms Gaffiero said that she has a CCTV system and will use her iPhone and iPad (and not her Apple watch) to watch footage from the CCTV. She said that her husband had established the connection between her iPhone and iPad and her CCTV system. She said that the CCTV system is not working at the moment because “the Wi-Fi failed” and her husband is trying to work out how he can connect a new one.
At the hearing, Ms Gaffiero gave evidence that she went to a specialist deaf school until she was about 16 years old. She said she also went to a Catholic School in Portsea. Ms Gaffiero confirmed that she cannot understand written English.[273] Ms Gaffiero confirmed that she works as a freelance support worker. She was asked if she needed to write any reports as part of this role, and that she said she would write everything in dot point form. She said she does paperwork and invoicing at home but will leave the home to provide support workers services.[274]
[273] Transcript, P-14.
[274] Ibid.
Ms Gaffiero gave evidence that Word of Mouth had assisted her to set up the Bellman devices in her old house, but only in relation to the smoke alarm. When asked whether she had asked Word of Mouth to attend her home to help set up the devices in her current home, she said that the Aurora School (which is early intervention for young Deaf children) had asked Word to Mouth to organise for the devices to be set up, but she said they did not attend. Ms Gaffiero said she made this request about 10 years ago, which pre-dated Ms Gaffiero and her family living in their current home. Then she said she was “not sure exactly” and that she cannot remember “that far back”.[275]
[275] Transcript, P-37.
When asked if Ms Gaffiero would ring Word of Mouth to help her if she had issues with the Bellman devices now, she said that “maybe there was some text messages between us”.[276] Then, she gave evidence that she had not asked them to help her at her current home because her husband was “more than capable of installing it”.[277] It is a matter for Ms Gaffiero to call upon the assistance of her husband if she considers he is more than capable of installing the Bellman system (or indeed operating and maintaining them). If he does not succeed in doing so, the Tribunal notes that as an alternative, she may call on Word of Mouth or an OT to assist her with these tasks if she is unable to develop for herself some capacity to do so.
[276] Ibid.
[277] Ibid, P-38.
Ms Gaffiero said she is “not great with technology”.[278] It was apparent to the Tribunal that there is a need for Ms Gaffiero to bridge the gap when it comes to technology by Ms Gaffiero seeking out some training and development from Word of Mouth, or an OT and/or others, about basic technological matters to help her understand how she can set up her devices and troubleshoot when required (as Ms Beasley says she currently does), and to effectively establish the connections or pairing between the different components of her current alerting system.
[278] Ibid, P-52.
Ms Beasley’s Evidence: On the AT Form, Ms Beasley states that Ms Gaffiero has “no speech skills (she is mute), low lipreading skills and basic English literacy and moderate English comprehension”. Ms Beasley states that Ms Gaffiero previously worked in a State bank, and as a cleaner and kitchen hand. Ms Beasley states that Ms Gaffiero said she had a lengthy break from employment until she started her own business. Ms Beasley states that Ms Gaffiero “faces barriers in her work due to her communication barriers and low skills”.[279]
[279] T-Documents, p.52.
Ms Dreyer’s Evidence: At the hearing, Ms Dreyer gave evidence that the low-cost items, such as the Ring doorbell, are set up so that “basic people with a good level of English can troubleshoot them”. She said, “We also have a direct line to Word of Mouth” which she said they have used several times to email them to advise the device is not working and to ask, “can we do this?”. However, Ms Dreyer added that if those issues cannot be resolved and leaves the participant without a device, it “still leaves a high level of anxiety”.[280] The Tribunal accepts that no matter which visual alerting system is being used, it may from time to time become non-operational and require resetting or fixing.
[280] Transcript, P-131.
Ms Barry’s Evidence: In Ms Barry’s Report, she states that Ms Gaffiero reported she works as a Disability Support Worker six days per week (17 to 27 hours per week) and as an Auslan Teacher for four hours per week.[281]
[281] NDIA’s HTB, p.323.
In Ms Barry’s Report she states that minimal training is required to use either the Visualert or the Bellman systems. Ms Barry states that the training required is “experiential” and “requires minimal technical knowledge”. Ms Barry specifies that the “main abilities required” are:[282]
(a)physical and cognitive abilities to change a battery or the ability to seek support to change a battery; and
(b)the cognitive ability to learn and remember that a coloured or flashing light corresponds to a specific alert.
[282] Ibid, p.331-332.
Ms Barry recommends in her report that Ms Gaffiero be provided with training for the use of any alerting system under consideration by an OT who is familiar with the AT. The Tribunal agrees with this and is satisfied that Ms Gaffiero is able to develop skills from this training, sufficient to be able to operate and maintain a visual alerting system whether it be a Visualert System or the Bellman System. The Tribunal accepts that of the two systems, it might be easier for Ms Gaffiero to operate and maintain the Visualert System. However, based on the evidence of Ms Barry and Mr Willis, which the Tribunal accepts, both systems are designed to be relatively easy to use. Ms Gaffiero also has the benefit of living with several other adult family members who may assist her if she is unable to manage the task of operating and maintaining the Bellman System (or may request support from her treating OT as required).
In Ms Barry’s Report, she states that Ms Gaffiero requires the input of a translator/coder to understand written English and regularly uses a coder to support her to understand and respond to written correspondence and to fill out forms.[283] The Tribunal notes that Ms Gaffiero receives funding in her NDIS plan for translation services by a coder. This support could be used to assist her to understand written instructions in a manual for certain technological devices in her home when needed.
[283] Ibid, p.324.
In Ms Barry’s Report, she states that that upon assessment, Ms Gaffiero “experiences some mild functional limitations and mild cognitive impairment”.[284] Ms Barry states that her report was based on observations made of Ms Gaffiero performing functional tasks in her home environment, completion of standardised assessments and supplemented by information obtained during an in-person interview with Ms Gaffiero, using an Auslan interpreter.[285] However, Ms Barry opines in her report that Ms Gaffiero “has the ability, given adequate training, to learn to use alerting systems”.
[284] NDIA’s HTB, p.315.
[285] Ibid, p.317.
Conclusion: The Tribunal finds that Ms Gaffiero has a sufficient level of cognition and communication skills (when assisted by Auslan interpreters, support workers, or Word of Mouth staff who know basic Aslan), to be capable of learning how to:
(a)set up the Bellman Visit System and Ring Doorbell including how to establish the connections between the different components of this system;
(b)how to regularly check if the components of the system are working and if any batteries require changing;
(c)changing the battery or seeking support to do so; and
(d)Identify which particular colour of a small flashing light on the Bellman devices corresponds to a specific event.
The Tribunal is not satisfied on the current evidence that Ms Gaffiero has any clinically significant deficit in her cognitive capacity which would prevent her from developing an increased familiarity and competence in relation to the use of technology and specifically, the Bellman Visit System. Nor does the Tribunal consider there to be evidence before it to find that Bellman Visit System requires the user to follow written manuals in order to use it, to a greater extent than might be required by a user of the Visualert System. Technical support is available and on hand by both suppliers of those two systems, should a user require it and in Ms Gaffiero’s case, there is funding available in her plan to be used on OT services to assist her to build her technological capability irrespective of which alerting device that she uses. The Tribunal considers that Ms Gaffiero’s evidence about her capacity to run her own business as a sole trader providing disability support worker services to another person or persons for 24 or 25 hours per day on average, is consistent with her having the capacity to undertake the above tasks.
Ms Dreyer confirmed that a staff member of Word of Mouth had conducted training with Full Life via Zoom video conferencing, in late-2018 or the start of 2019. She said she recorded this training session and any new therapists are required to watch it and sign off that they have done so, as part of the onboarding checklist. Ms Dreyer said she also has a separate video showing Full Life staff demonstrating how to use “the product”, specifically, how to set it up, how it can “interconnect with a fire alarm”, how to change the radio frequency key, and how to troubleshoot if there are problems.[286] Ms Dreyer did not think that it covered the technical specifications of the product. As a non-binding observation and in an endeavour to assist, the Tribunal notes that it is possible for Ms Gaffiero’s treating OT to provide her with the videos demonstrating how she may do the things described above in relation to the Bellman devices which Ms Dreyer has given evidence that she regularly recommends to Full Life clients.
[286] Transcript, P-152 and P-153.
Inadequate safety features
Ms Gaffiero contends that the Bellman Visit System had inadequate safety features due to insufficient notification of system faults or low battery or battery failure. The NDIA contends that the Tribunal “ought not find that the Bellman system has inadequate notification of low battery and system faults, such that it is not reliable; or that the Visualert system has significant benefits in this regard which would help justify its cost”.[287]
[287] NDIA’s Closing Submissions, paragraph [37].
In terms of low battery notification, the NDIA accepts that the visual notification of low battery on the Bellman smoke alarm is a relatively small read light located on the device itself. However, the NDIA contends that this has limited impact as the smoke alarm battery has a ten-year life and so the warning light would not expect to be activated over that period. The Tribunal accepts this contention and also accepts the further contention of the NDIA that Ms Gaffiero is able to make regular checks of the device in the same way as is recommended in the instruction manual for the Visualert System. The Tribunal does not find that this factor should lead to a conclusion that the systems are unlikely to deliver the same outcome in terms of adequately alerting Ms Gaffiero when the smoke alarm in her home is triggered.
In terms of notifying the user of a system fault, the NDIA agrees that there is no visual notification of such a fault with the Bellman smoke detector and instead it will only “chirp” every 40 seconds. The NDIA contends that this chirping could be heard by Ms Gaffiero’s son who lives in the home with her. Mr Dreyer claims that the chirping of the device is “very soft”. The NDIA highlights that smoke detector is compliant with AS3786:2014 and so this is “unlikely to be an issue”. Even if the volume of the chirping was too soft for Ms Gaffiero’s son to hear it, the Tribunal considers that his can be addressed by Ms Gaffiero conducting regular checks of the device. By contrast, the Visualert instruction manual recommends that monthly checks be undertaken of the smoke detector forming part of that system. The Tribunal is not satisfied that this is a distinguishing feature of the Bellman Visit System which would prevent it from achieving the same outcome as the Visualert System.
In Ms Gaffiero’s Outline of Submissions, Ms Little contends that “The Bellman System fails to comply with Part H3D6 of the National Construction Code 2022 Volume Two and Part 9.5.1(c) of the ABCB Housing Provisions due to the system utilising an extend life battery rather than being hardwired into the mains power as required by the Construction Code”. The NDIA accepts that the Housing Code does provide for hardwiring where mains power is available but the NDIA highlights that there is nothing in the Code to suggest this is intended to apply to specialist alerting systems for the deaf. The NDIA also contends as follows:
(a)there is a lack of evidence establishing that hard-wiring is “best practice” for a specialist alerting system for the deaf;
(b)s 34(1)(d) refers to “current good practice” and not “best practice”. The NDIA contends that “good practice” would encompass battery powered smoke alarms as well as hard-wired smoke alarms and the NDIA highlights that the Bellman smoke alarm complies with the Australian Standard AS3786.[288]
[288] Transcript, P-231.
The Tribunal is not persuaded the Bellman Visit System would fall short of delivering the same outcome as the Visualert System on account of its smoke alarm being battery powered instead of hard-wired. There was no evidence before the Tribunal presented by Ms Gaffiero which supported a finding by the Tribunal that the battery operated smoke alarm presents a safety risk to Ms Gaffiero because it is battery powered and not hard-wired. The reference to a requirement in the housing code on its own is insufficient proof of any such safety risk. It is also inconsistent with Bellman smoke alarm having met the Australian Standard AS3786.[289] Additional evidence and further exploration by Ms Little of her contention and the relevant evidence was required and did not occur in this matter, before the Tribunal could be satisfied that the Bellman Visit System would not achieve the same outcome as the Visualert by this reason alone.
[289] NDIA’s HTB, p.288 – Certificate of Conformity issued 23 July 2020.
Other points of comparison
In Ms Barry’s Reports she states that the Visualert System and the Bellman Visit System are both “multi-alerting systems”, with the Visualert being hard-wired and the Bellman System being portable, using battery or plug in power. Ms Barry states that the Visualert System “cannot be moved and relocated temporarily, such as when on holiday”. Ms Barry states that “its effectiveness as an alerting product for the deaf relies upon it being well positioned with multiple outlets, covering every room and outdoor area of the home”.[290] In relation to this last sentence, the same applies in respect of the Bellman Visit System. Ms Barry noted that both systems can send alerts to bed shakes, and both have battery back up in the event of a power failure. One point of difference noted by Ms Barry, is that the Bellman System can be connected to Ms Gaffiero’s existing Ring doorbell, whereas the Visualert System includes and requires the use of its own doorbell.[291]
[290] NDIA’s HTB, p.329.
[291] Ibid, p.330.
Ms Varney put to Ms Beasley that the problems Ms Gaffiero had mentioned at the hearing about using the Bellman system, specifically, she does not have the power point space so would need to move it from room to room and the visibility issues, might be overcome by Ms Gaffiero wearing a pager receiver, to receive alerts. Ms Beasley said it was her opinion that the pager would not be the right option for Ms Gaffiero because the burden would be placed on Ms Gaffiero to make sure it is charged every day, and that she clips it to her person. She also said that Ms Gaffiero would not be able to wear the pager in the shower or to bed.[292] Upon further questioning, Ms Beasley agreed that it is one option to address the issues raised by Ms Gaffiero, but that she did not think it was the “right option” for Ms Gaffiero.[293]
[292] Transcript, P-78.
[293] Ibid, P-78.
In Ms Barry’s Report, she opines that if Ms Gaffiero’s existing Bellman Visit System is supplemented by some additional components, it will meet Ms Gaffiero’s functional needs. Ms Barry specified that:[294]
(a)the Bellman pager receiver be connected to the Ring Doorbell, to provide vibrating as well as visual (alerting light, not video stream) alerts to Ms Gaffiero, when the doorbell rings, and which is not dependent upon Wi-Fi. Ms Barry states that the pager is portable and can be worn or carried on the person, similar to a smart phone. At the hearing, Ms Barry said it is “highly preferrable” to have receivers that will provide both visual and tactile alerts. Ms Barry refers to the Fire Rescue Victoria CFA brochure about smoke alarms, and the Fire Authorities Council brochure entitled “Smoke Alarms in Residential Accommodation”, which recommend having both visual and tactile receivers for the hearing impaired, in terms of fire safety;[295]
(b)the Bellman pager receiver be connected to the Bellman smoke alarms, which will provide both tactile/vibration and visual alerts when a smoke alarm is activated. Ms Barry states this can be used inside and outside of the home and will provide tactile alerts to Ms Gaffiero when she is in bed and at other times of the day, except when showering, provided she wears the pager. Ms Barry states that the pager may be clipped onto clothing;[296]
(c)the Ring Doorbell be connected to the Bellman Visit Alarm Clock. This will activate the bed shaker if the doorbell rings whilst Ms Gaffiero is in bed;
(d)the Ring Doorbell be connected to the Bellman Visit Flash Receivers, which will provide doorbell alerts by the receiver’s flashing light in the rooms where there are not hard-wired lights[297] and at times when the Wi-Fi is not working or the Wi-Fi devices (that is, watch, phone, iPad) are not in use (for example, during charging);
(e)four[298] additional Bellman flash receivers are required (six in total)[299] to provide adequate visual alerts throughout Ms Gaffiero’s home (and covered outdoor areas),[300] and to eliminate the need for Ms Gaffiero to rely upon moving these portable devices from room to room (which she said is currently required, with only two flash receivers in Ms Gaffiero’s home);
(f)additional Bellman smoke alarms to “cover rooms, including bedrooms, off rear hallway”;[301] and
(g)an additional alarm clock and bed shaker in Ms Gaffiero’s daughter’s bedroom.[302]
[294] NDIA’s HTB, p.327.
[295] Transcript, P-161. Fire Rescue Victoria CFA brochure: NDIA’s HTB, p.355. Fire Authorities Council brochure: NDIA HTB p. 528.
[296] HTB, p.328.
[297] The Tribunal notes these lights are not connected to the Bellman Door Transmitter by hardwiring but instead by a Wi-Fi connection as mentioned above.
[298] Transcript, P-166.
[299] NDIA’s HTB, p.329.
[300] Ibid.
[301] Ibid.
[302] Ibid. The Tribunal notes that Ms Gaffiero is a NDIS participant and is able to seek funding under her plan for AT to meet her individual disability-related needs.
By contrast, Ms Barry opined that if the Visualert is installed in accordance with the recommendation by Ms Beasley, it would not meet Ms Gaffiero’s alerting needs because several areas in her home would continue “not to receive smoke alarm and doorbell alerts despite having a Visualert System installed”. Ms Barry opines that the LED lights do not “cover” the following areas:
(a)the theatre room because it is closed off by solid sliding doors;
(b)the rooms located at the rear left side of the house, specifically, her son’s bedroom, guest bedroom, hallway, laundry, family bathroom and separate toilet;
(c)her daughter’s bedroom; and
(d)the rear left side of the rear garden.[303]
[303] NDIA’s HTB, p.328.
Ms Barry highlights that Visualert “only provides tactile input when alarms are connected to a bed shaker”. She said that multiple bed shakers “can be used” in the same house and noted that this was also the case with the Bellman System. Ms Barry states that she is unaware as to whether a vibrating pager or portable alerting system may be connected to Visualert. Based on this, Ms Barry concluded that Visualert will provid tactile notification to the occupant, only when they are in bed.[304]
[304] Ibid, p.328.
Ms Barry accepted that Visualert would meet Ms Gaffiero’s functional needs if several additional LED lights (four as a minimum), were located adequately throughout her home.[305]
[305] Ibid, p.327.
For home alerting solutions, broadly consistent with the recommendations of Ms Barry, Mr Willis recommended the “system [sic] radio frequency system” because he stated that it provides the user with “flexibility to suit changing needs” such as “moving house, changing rooms as children age etc”. Ms Willis specified that the Bellman Visit alerting system offers this and he suggested a combination of receivers to suit Ms Gaffiero’s requirements. Mr Willis explained that this will typically include:
(a)visual flashing lights for the living areas of the home (as many as are deemed necessary by the user or OT);
(b)a visual and vibrating receiver for the bedroom e.g., BE1380 Visit Alarm Clock or BE1442 Flash Receiver; and
(c)if necessary, a vibrating pager for the user to wear on their person, if they want to be alerted anywhere in the home (or outside).
Mr Willis stated in his report that this system included a range of transmitters and the client “can choose what they wish to be alerted to”. He stated that “common transmitters are Smoke Alarm, Doorbell, Baby Cry and Telephone”.
Conclusion as to whether the Bellman Visit System will deliver the same outcome as the Visualert System at a substantially lower cost
For reasons explained in detail above, the Tribunal concludes that the Bellman Visit System when used in conjunction with the Ring Doorbell (or without it and instead the Bellman doorbell), will deliver the same outcome as when the Visualert System is used. The Tribunal is satisfied that any extent to which problems or issues raised by Ms Gaffiero are present, are capable of resolution in the manner referred to above in these Reasons for Decision, in respect of each of the reported problem or issue.
The Tribunal finds that the cost of the Bellman Visit System and Ring Doorbell in the circumstances of Ms Gaffiero’s application, where she has already purchased several of the components of the Bellman Visit System/Ring Doorbell, will be a substantially lower cost than her purchasing and installing the Visualert System.
Rule 3.1(b) of the Support Rules – whether likely to reduce the cost of the funding of supports for the participant in the long term
In Ms Gaffiero’s Outline of Submissions at paragraph [27], Ms Little sets out that the Visualert System offers a one-year manufacturer’s warranty, with up to three years on individual parts and five years on the smoke detector. Ms Little does not contrast with the warranties offered by the Bellman Visit System. This system offers a two-year warranty. The Tribunal does not consider this to be a distinguishing feature between the two systems which would alter the Tribunal’s views that both systems will achieve the same outcome of adequately alerting Ms Gaffiero to smoke or fire in her home or when the doorbell rings (when used in conjunction with her Ring Doorbell). The Tribunal finds that the use by Ms Gaffiero of the Visualert System, instead of the Bellman Visit System, is unlikely to reduce the cost of funding of supports for participant in the long term, particularly taking into the respective warranty periods and also the differential in purchase price of the two different systems.
Rule 3.1(c) of the Support Rules – purchasing versus leasing the support
There was no suggestion by the NDIA that Ms Gaffiero should lease instead of purchasing either the Visualert System or the Bellman Visit System/Ring Doorbell. This consideration is not relevant in this application.
Rule 3.1(d) of the Support Rules - whether cost of support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides
Neither party submitted that this is a relevant consideration in this application.
Rule 3.1(e) of the Support Rules - whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports
Ms Little on behalf of Ms Gaffiero contended that the provision of the Visualert System would reduce the support she is likely to receive from an OT to assist her to set up and maintain her alerting system in working order. The Tribunal is not satisfied that this is the case to any significant extent because both systems are likely to require assistance from OTs and/or technicians to help Ms Gaffiero with the task of setting them up and learning how to maintain them in working order.
Further consideration
In Ms Barry’s Report, she states it is possible that Visualert might offer greater value for money because there are other non-hearing persons living in Ms Gaffiero’s home and system would be used by more than one person.[306] At the hearing, Ms Barry accepted during cross-examination, that this same logic would apply to any alerting system which might be used in Ms Gaffiero’s home.[307] The Tribunal considers that the reduction in supports required by Ms Gaffiero and each of her other family members who are deaf, on account of being able to share alerting AT in their home will apply equally, irrespective of the particular type of alerting system selected.
[306] NDIA’s HTB, p.229.
[307] Transcript, P-162.
Section 34(1)(c) criterion not met
The Tribunal concludes that that the Bellman Visit System when used in conjunction with the Ring Doorbell (or indeed without it) is a comparable support to the Visualert which would achieve the same outcome at a substantially lower cost. The Tribunal is not satisfied that if Ms Gaffiero were to purchase and install the Visualert System instead of adding to and optimising her current Bellman Visit System/Ring Doorbell, would have the effect of reducing the cost of the funding of supports for Ms Gaffiero in the long term. The Tribuanl is not satisfied that the Visualert System in contrast to the Bellman Visit System/Ring Doorbell might increase Ms Gaffiero’s independence and reduce her need for other kinds of supports. As mentioned above, the other considerations under Rule 3.1 of the Support Rules are not relevant.
Accordingly, the Tribunal concludes that the “value for money” criterion under s 34(1)(c) of the NDIS Act is not met. The Tribunal considers it unnecessary to decide whether the remaining five mandatory criteria under s 34(1) of the NDIS Act are met, because the six criteria under s 34(1) are cumulative.
For this reason, the Tribunal concludes that the Visualert System is not a “reasonable and necessary support” for Ms Gaffiero. Instead, the Tribunal is satisfied that additional funding that will enable Ms Gaffiero to add to and optimise her current Bellman Visit System and Ring Doorbell in accordance with Ms Barry’s recommendations, including some funding for wall mount kits and additional power points (as required), is a “reasonable and necessary support” for Mrs Gaffiero and should be included in her statement of participant supports forming part of her NDIS plan.
CONCLUSION
The Tribunal notes that Ms Gaffiero’s current statement of participant supports included general funding for AT of $1,000. The Tribunal concludes that this funding should be replaced with funding for the AT supports identified in Ms Barry’s Report including the cost of the wall mount kits and additional power points (as required).
Accordingly, the Tribunal sets aside the decision under review and remits this matter to the NDIA with a direction that it approves a new SOPS for Ms Gaffiero which includes funding for the following supports:
(a)the AT supports identified in paragraphs [334(a), (e) and (f)] of these Reasons for Decision;
(b)the cost of Bellman Visit wall mount kits and installation of additional power points as required (upon provision of a quote to be given to the NDIA prior to the approval of the new SOPS for Ms Gaffiero under this remittal); and
(c)to replicate all other supports in Ms Gaffiero’s current SOPS (except for any one-off supports for which the funding has already been expended and except for the $1,000 for general AT funding which is to be replaced by funding for the supports referred to in the above two paragraphs).
Should any subsequent dispute between the parties arise about the quantum of funding to be approved for the cost of the Bellman Visit wall mount kits and installation of additional power points, the Tribunal grants liberty to the parties to apply to the Tribunal (as presently constituted) for a further direction as to this amount of funding to be provided (without the need for the parties to apply for reinstatement of these proceedings).
There is no issue between the parties in respect of plan management and this should remain as presently specified in Ms Gaffiero’s current SOPS in her NDIS plan.
I certify that the preceding 353 (three-hundred and fifty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker
...................... ..........[sgd]........................................
Associate
Dated: 26 July 2024
Dates of hearing:
Date of lodgement of submissions lodged after the hearing:
7 & 8 August 2023; 6 & 30 October 2023
3 & 21 November 2023; 8 December 2002;
9 & 10 April 2024 & 11 & 23 July 2024
Advocate for the Applicant:
Jade Little
CODA Auslan ServicesCounsel for the Respondent: Sarah J Varney Solicitor for the Respondent: Mary Zdilar
National Disability Insurance Agency
with NDIA case manager, Ms Bisht.
< Or at NDIA’s Supplement HTB, p.738.
- AGLC
- Gaffiero and National Disability Insurance Agency [2024] AATA 2641
- Case
- [2024] AATA 2641
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the Visualert system constituted a "reasonable and necessary support" for Ms Gaffiero under the NDIS Act. This involved assessing whether the proposed support represented "value for money" and was appropriate for her needs, considering her existing alerting systems and the availability of alternative solutions. The Tribunal also had to consider a potential conflict of interest raised by the NDIA concerning the occupational therapist who recommended the Visualert system, as her employer and employer's husband had prior involvement with the Visualert system.
The Tribunal reasoned that while Ms Gaffiero required additional technology to ensure her safety and notification of important events, the Visualert system, as proposed, was not the most appropriate or cost-effective solution. It found that the requested support did not meet the "value for money" criterion, particularly when compared to supplementing her existing portable alerting system. The Tribunal acknowledged the occupational therapist's recommendation but gave greater weight to expert evidence suggesting that alternative, less expensive options could adequately meet Ms Gaffiero's needs. The Tribunal also addressed the conflict of interest issue, noting that while it was a relevant consideration, it did not ultimately prevent the Tribunal from assessing the merits of the support requested.
Consequently, the Tribunal set aside the NDIA's decision. It remitted the matter back to the NDIA with a direction to approve a new statement of participant supports for Ms Gaffiero. This new statement was to include funding for the cost of supplementing her current portable alerting system, thereby providing a more appropriate and cost-effective solution to meet her notification needs.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Tribunal has considered the following Operational Guidelines published by the NDIA on its website:(a)NDIA Operational Guidelines entitled “Principles we follow to create your plan” (updated on 25 September 2023);[35](b)NDIA Operational Guidelines entitled “Reasonable and necessary supports” (updated on 6 October 2023) (‘NDIA R&N Guidelines’);[36] and(c)NDIA Operational Guidelines entitled “Assistive Technology” (updated on 20 December 2023) (‘NDIA AT Guidelines’).CONSIDERATION [35] What principles do we follow to create your plan? | NDIS[36] Reasonable and necessary supports | NDISConflict of Interest Issue - OT’s expert report by Ms Beasley of Full Life Ms Beasley’s oral and written evidence forms the primary foundation of Ms Gaffiero’s contention that the criteria under s 34(1) of the NDIS Act are met in respect of the Requested Support. Other expert witnesses who gave evidence in this matter, in particular, Mr Lewkovitz and Mr Willis, disagreed with many of the factual assertions and opinions expressed by Ms Beasley. The Tribunal will need to decide how much weight to place on the competing evidence from those experts, including Ms Beasley’s expert evidence, and also the evidence of Ms Barry, who is the independent OT engaged by the NDIA to prepare a report. The Tribunal considers it appropriate, at the outset, to address the NDIA’s contention that the Tribunal should disregard the expert evidence of Ms Beasley due to the existence of a conflict of interest which impacts upon her objectivity and therefore, the reliability of her evidence. Specifically, the NDIA contends that a conflict of interest arises because:(a)Ms Beasley’s employer, Full Life, and Full Life’s director and lead therapist, Ms Dreyer, was responsible for designing the initial concept for the creation of the Visualert System; and (b)Ms Dreyer’s husband, Mr Dreyer, was formerly involved in the marketing and distribution of the Visualert System in Australia through Assistive Tech. History of the conflict of interest issue Upon being summonsed to appear at the hearing and before so appearing, of her own volition, Ms Dreyer engaged a lawyer to assist her to prepare and lodge with the Tribunal a lengthy and detailed 15-page witness statement signed on 3 August 2023 (‘Ms Dreyer’s Statement’) including 217 pages of annexures.[37] [37] Ms Dreyer’s Statement was lodged with the Tribunal on 4 August 2023. Ms Dreyer’s Statement addressed the above conflict of interest issue by providing an account in relation to the following:[38](a)the genesis and creation by Ms Dreyer of the design concept for the Visualert System and her collaboration with an electrician, namely, Mr Scott Egan, Egan Electrical Pty Ltd;(b)Ms Dreyer’s husband, Mr Johannes Christiaan Du Plessis Dreyer, previously owned and directed the company which is the Australian marketer and distributor of the Visualert System, namely, Seventeen’s Dream Pty Ltd ACN 611 809 879.[39] This company subsequently changed its company name to Assistive Tech Suppliers Pty Ltd (“Assistive Tech”);[40] (c)at the time of registration of Louise Dreyer OT Pty Ltd (‘Full Life’), Ms Dreyer’s husband was Full Life’s company secretary; and(d)Full Life issued the AT Report, signed by Ms Beasley, in support of Ms Gaffiero’s request to receive funding for the purchase and installation of the Visualert System.[38] Ms Dreyer’s Statement, [27].[39] NDIA’s HTB, p.451.[40] Ms Dreyer’s Statement, [63].